Article 94 of the Constitution provides for the removal of the Ombudsman on the grounds of mental incapacity or gross misconduct. The SCA reiterates that the scope of “gross misconduct” remains undefined and that clear procedural safeguards have not been established in law. 

The SCA notes the Ombudsman’s indication that the procedural safeguards are intended to be addressed through regulations rather than primary legislation. The SCA considers that safeguards established through regulations may be amended more easily than those set out in the enabling law, and that this may weaken the guarantees of tenure of the Ombudsman. 

The SCA recommends that the process and grounds for dismissal are clearly defined and set out in the enabling law, with transparent procedural guarantees of review and appeal. Such requirements ensure the security of tenure of the members of the governing body and are essential to ensure the independence of, and public confidence in, the senior leadership of an NHRI. 

The SCA refers to General Observation 2.1 on ‘Guarantee of tenure for members of the NHRI decision-making body’.